Английский язык для студентов юридических вузов и факультетов. Учебник

LESSON TWO

tion such as the course syllabus, Exercises, and specific links to other sites that directly relate to course content.

4. It is cheaper to teach with telecommunications.

Disadvantages

1.In distance education, the teacher does not have the traditional face- to-face interaction with the student typical in traditional classroom settings. Resultantly, there is a need to design and implement special means for assigning, guiding, and assessing student work.

2.In order to communicate with their students, teachers are frequently forced to utilize sophisticated and expensive technological devices which are not under their exclusive control and which often require special technical knowledge that teachers might not fully possess.

3.A teacher’s syllabus, lectures, examinations, and other course materials may be copied, recorded, or reused without his or her presence or permission.

4.The Internet tends to be time-consuming.

5.Distance education via the Internet is more costly than traditional forms of education.

6.Many students are uncomfortable using computers.

7.Education at higher institutions has a more profound effect on students than simply feeding them with information; students also learn about themselves and experience great personal growth. Distance learning does not enable this opportunity for growth.

4.Compare the methods used in American and Russian education and say if they could be applied online without any damage to the result?

V.Role Plays

1.Working in groups of two improvise a conversation according to the instructions given below.

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ORAL SPEECH PRACTICE

Role 1: You are the head of a law firm. You are looking for an experienced lawyer. Ask a person who came to you to apply for a job about his work history. Find out if he has a family, why he has left his previous place of work, if he is computer-friendly and any other details you think you ought to know.

Role 2: You are a lawyer looking for a job. You had been working for a law firm in another city for 5 years after graduating from a law school. You married two months ago and moved to this city because your wife had strongly objected to living in the previous place of residence. Answer all the questions of the head of the law firm where you came to look for a job.

2. Form three groups. You are groups of people who are going to discuss the possibilities of reducing negative effects of mass media. After you discuss the issue in your own group make a presentation of your point of view. Speak of the problems mass media present and the remedies you have.

Group I: Parents. Dwell on the following problems: 1) Advantages and disadvantages of getting new information from TV programs and the Internet; 2) The Internet may be a dangerous place for children; 2) The best ways of limiting your children’s exposure to televised violence and dangerous online territories (monitoring YV and computer use, using V chips and other means of blocking access to undesirable information).

Group II: Medical workers. Dwell on the following problems: 1) The risks of exposing children to violence and pornography. Teaching children how they should interpret what they see on TV and websites; 2) Installation of chips to block certain programs; 3) The media responsibility before the society as a whole for its impact of violence on youth; 4) Parents’ responsibilities.

Group III: Media literacy Educators. Advantages of using TV programs and the Internet in education including the following: 1) We live in a mediated environment. 2) Media literacy emphasizes critical thinking. 3) Being media literate is part of being an educated citizen. 4) Media literacy promotes active participation in a media-saturated environment. 5) Media education helps us to understand communication technologies.

VI. Case Study

Read the following case and the questions which follow it. Make your decision as if you were an administrator of a higher school.

The library of a large university is connected to the Internet. The library discovers that a student has defeated the user limit and regularly logs onto the database as an extra user. What can the student be liable for?

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LESSON THREE

GRAMMAR: Analysis of Complex Sentences. WORD-BUILDING: Adjective Forming Suffixes (Revision).

READING AND ORAL SPEECH PRACTICE: Historical Background of Anglo-American Law.

CONVERSATIONAL FORMULAS: Ways of Asking for Points of View. WRITING: Analyzing the Content of a Text.

GRAMMAR

The Analysis of Complex Sentences

Model: We must consider, first, the belief that law is an expression of man’s rational and moral nature and that any law must be interpreted in the light of the rational and moral purposes which it is designed to fulfill.

Анализ следует начинать с конца предложения.

1.Сначала находим первое сказуемое — is designed to fulfill и его подлежащее — it. Перед подлежащим стоит союз which, значит, это придаточное определительное (Attributive Clause).

2.Выделяем второе сказуемое — must be interpreted и его подлежащее — any law. Подлежащему предшествует союз that, а ему союз and. Союз and — сочинительный, Следовательно, предложение относится к тому же типу, что и предшествующее ему предложение.

3.Третье подлежащее — law, а его сказуемое — is an expression. Перед подлежащим стоит союз that, а ему в свою очередь предшествует слово belief. Следовательно, это придаточное предложение, так же как и последующее придаточное дополнительное (Object Clause).

4.Четвертое сказуемое — must consider, а подлежащее — we. Перед подлежащим нет союза. Следовательно, это главное предложение.

Схема предложения:

S1 + P1 that S2 + Р2 and that S3 + Р3... n + which + S4 + Р4.

5. Если сложноподчиненное предложение начинается с союза или союзного слова, за которым следует подлежащее и сказуемое, то это придаточное подлежащное, что видно по тому, что за ним следует глагол в личной форме. Е. g.: What you say is not right. Схема предложения:

What + S1 + P1 + P2.

6. Если за глаголом-связкой следует придаточное предложение, начинающееся с союза или союзного слова, оно выполняет функцию именной части сказуемого. Такое придаточное предложение называется

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GRAMMAR

придаточным предикативным. E.g.: The question is why he is absent. Схема предложения: S1 + P1 + why + S2 + P2.

Exercises

1.Read and analyze the following sentences. Draw schemes reflecting their structure.

1.Law helps us to be civilized because it states so many rules telling us what we may or may not do. 2. If enough people agree that the positive law is wrong, society can change or eliminate the positive law. 3. In an earlier period most leading American jurists fully accepted the view that there is a “moral law”, or a “higher law”, by which legislatures, courts and administrative officials are bound and which is superior to statutes, precedents, or custom. 4. Although the judicial power to annul unconstitutional acts of the legislature may perhaps be justified without resort to a theory of a “law of nature”, it is nevertheless significant that the judges who first invoked that power did accept such a theory. 5. The naturalrights theory postulated the existence of fixed norms and concepts by which legal rules were to be judged, whereas the earliest theory spoke in terms of the conformity of legal rules to broader and more flexible standards of justice.

2.Analyze the following sentences containing Subject and Predicative Clauses. Draw schemes reflecting their structure.

1.How people have acted and continued to act is an ethic influencing positive law. 2. How law is applied in court is very important. 3. What has happened to Mr. Adams is not the first time. We have come across such cases in our practice rather often. 4. This is what the professor spoke about at the last lecture. 5. The fact is that many lawyers have come to view law primarily as an instrument of social change, of “social engineering”. 6. The common law is only what the courts have made it.

3.Point out subordinate clauses joined to the principal clauses asyndetically.

1.The law, like other intellectual products we impose on nature, is ar-

ranged in classes. 2. The lawyer, who represents the defendant in his criminal case, said he had studied the case thoroughly. 3. The criminal defense attorney believes the court shouldn’t have convicted the youth, because the homemade knife he was carrying was not a switchblade (автоматически открывающийся нож) as defined in the statute. 4. I am afraid the authors of the article focused on who is to blame and not on what to do about it. 5. The Assistant State Attorney, who is prosecuting the case against the Smiths, said the defense attorney might be involved in several conflicts of interest that could harm his clients' defense.

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LESSON THREE

READING

TEXT 1

1. Read and translate the text paying special attention to the words and wordcombinations. Explain your choice.

HISTORICAL DEVELOPMENT OF LAW

IN GREAT BRITAIN AND THE USA

The common law of England, the body of customary law embodied in reports of decided cases, is in fact a Norman creation. It originated in the Middle Ages in the decisions of local courts which applied what Sir William Blackstone, one of the prominent English jurists of the 18th century, called “the custom of the realm from the time immemorial”.

Before the Norman Conquest (1066) the Anglo-Saxons, especially after the accession of Alfred the Great (871), developed a body of rules which resembled those being used by the Teutonic peoples of northern Europe. But the Norman Conquest brought an end to the Saxon laws, except for some local customs.

The main role in the development of common law was played by courts. Before the Conquest, there existed two types. The head of the shire was an earl. The earl’s reeve, or the shire reeve (sheriff) managed the shire court and supervised the lesser courts1.

“The Conquest brought another kind of local court. Anglo-Saxon England had not been altogether feudal; the Norman system was. Each lord had his court. The privilege of holding court was an important incident of feudal tenure. For one thing, the power to adjudicate was then the principal expression of political authority, not, as now, just one of three. For another, it was an important source of income”2.

The Anglo-Saxons had no royal courts. In the last half of the 12th century the king of England and Normandy, Henry II, introduced litigation in the royal courts as a “substitute for private wars...”3. Thus, “he made it clear to Englishmen that most of the law, the important law, would issue from a single source, from a government strong enough and bright enough to render it large in their lives. It would operate throughout the land. The common law took hold. With it the jury system”4.

“Another English adaptation of medieval Western legal ideas and procedures was the development by the Chancellor of special rules and procedures called ‘equity’ “5. It is clear that single legal rules cannot be formed to deal with all possible cases. The mechanical application of rules can sometimes result in injustice. “In the fourteenth and fifteenth centuries the king’s courts became rigid and narrow in their interpretation of their own functions and their own rules. The Chancellor, who next to the King was the most important official in the country, then set up a

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READING

special office to hear grievances which the King’s regular courts could not or would not handle adequately”6. Gradually, the Chancellor’s jurisdiction developed into the Court of Chancery, whose function was to administer equity.

Besides common law and equity, statutory law also developed in England. The term “statute” is usually applied to written law, to the acts of legislative or law-making body, whether Congress or Parliament, or other assembly of representatives charged with the enactment of general rules of conduct which are binding upon the inhabitants of the state. There was written law in England before Parliament came into existence, as the collections of laws going under the names of the kings of pre-Norman or Anglo-Saxon period indicate.

In the 13th century statutes of Edward I, who has been called the English Justinian, greatly amended the unwritten common law: they limited the jurisdiction of local courts, liberalized appeals to high circuit courts, improved the law of administration of assets on death, etc. The Tudors made use of proclamations by the king to invoke emergency measures, and to establish detailed regulations, especially in economic matters.

The English settlers on the Atlantic Seaboard of North America brought with them the English legal tradition. But the English law of that time was ill-adapted to the conditions of the New World. Innovations made by the American judges and legislators are great. That is why the lawyers say that Great Britain and the U.S.A. are “the two countries separated by common law.” Common law was formally adopted in all the original States of the Union. Louisiana, where the ‘Code Napoleon’ prevailed at the time of its admission to statehood, is an exception.

In the first 75 years of the history of the U.S.A. “American judges, jurists, and legislators were able to develop out of the received English law a body of legal institutions and doctrines which reflected the social life of the new American polity — an American law.”7 The greatest difference is found in the sphere of public law. Great Britain has no written constitution and no judicial review, whereas every court in the U.S.A. has the power to pass judgement on the conformity of legislation and other official actions to constitutional norms. Many areas of U.S. law have been “constitutionalized”.

There are many other specific features in the American legal system, which were established due to the great economic, political, and social changes that took place during the history of the country’s development.

Notes: 1 Rembar Ch. The Law of the Land. N.Y., 1980, p. 68. 2 Ibid, p. 69.

3 Ibid, p. 58.

4 Ibid, p. 144.

5 Berman, Harold J. The Historical Background of American Law // Talks on American Law, N.Y., 1971, pp. 6-7.

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LESSON THREE

6 Ibid, p. 7.

7Ibid, p. 13.

2. Give the Russian for:

the custom of the realm, accession, a body of rules, communal courts, shire court, earl, shire reeve, lesser courts, the privilege of holding court, feudal tenure, power to adjudicate, source, jury system, grievances, Court of Chancery, to administer equity, enactment of general rules of conduct, collection of laws, circuit courts, administration of assets on death, emergency measures, statehood, to pass judgement

3. Give the English for:

общее право, право справедливости, статутное право, обычное право, местные суды, королевские суды, местные обычаи, завоевание, источник дохода, справедливость, несправедливость, писаное право, законодательный орган, законодатель, институты права, публичное право, соответствие законодательства конституционным нормам, правовая система

4. Translate the words in brackets.

1.Even as the common law actions enlarged in scope, large (области) of legal right remained beyond their reach. 2. Many of the basic (правовых идей) of American law were freed from medieval survivals. 3. The king's court in the 11th century did not (отправлял правосудие) generally throughout the country. 4. (Местные суды), feudal or communal, did not use a jury. 5. Until the late 19th century English (общее право) continued to be developed primarily by (судьями) rather than (законодателями).

6.The term «statute» is commonly (применяется) to the acts of а (законодательного органа).

5.Translate the following sentences:

to handle

1. Some lawyers handle cases of individuals charged with crime. 2. I cannot handle this child. 3. I am sure he will handle this job. 4. Ask him to handle the situation.

to set up

1. That lawyer set up his practice here not long ago. 2. New agencies have been set up to provide legal service for the public. 3. A special committee was set up to examine the problems of crime.

to deal with

1. Professor Smith’s new book deals with the problems of crime. 2. We’ve been dealing with this firm for five years. 3. This official deals with all the complaints.

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READING

6. Make up word-combinations and use them in sentences of your own.

7.Form adjectives with the help of the following suffixes. Translate the derivatives into Russian.

-able (-ible): reason, to understand, to recommend, to justify, to accept -al (-ical): nation, nature, history, practice, ideology, tradition, psychology,

judge, constitution, memory, commune, origin

-an (-ian): Italy, Russia, Austria, America, Hungary, Bulgaria, Canada, Florida, Nevada

-ant/-ent: to dominate, to differ, to import

-ary/-ory: parliament, example, element, evolution, reaction, custom, statute

-ed: colour, uniform, talent, experience -ern: south, north

-ful: fear, truth, law, help

-ic: class, democrat, diplomat, base, philosophy, economy -ist: real, capital, positive

-ive: to collect, to illustrate, to execute, to regulate, to express, to administrate, to legislate

-less: spirit, law, end, help, life, motive -ly: body, cost, elder

-ous: fame, religion, danger, victory, murder

8.Look through text A once again. Make up as many questions as you can based on it. Ask your group-mates to answer them.

TEXT 2

1. Memorize the following words and word-combinations. juvenile — несовершеннолетний

juvenile court — ювенальный суд; суд особой юрисдикции, рассматривающий дела несовершеннолетних преступников

concur — соглашаться

dissent — расходиться во мнениях; заявлять особое мнение reverse the judgement — отменять судебное решение turncock — человек, распределяющий воду по магистралям abscond — скрываться от правосудия

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LESSON THREE

embezzlement — присвоение имущества, растрата

2.Read the following international words and give their Russian equivalents. Consult a dictionary if necessary.

number, appeal, to arrange, procedure, commercial, region, section, publication, to identify, code, private, statute, report, law, act

3.Translate the family words.

rule — to rule — ruling — to overrule, to appeal — appellate, similar — similarly, justice — multi-justice

4. Give the Russian for.

judge-made, decision-making, case-law

5. Read the text. Put down the facts, which are most interesting from your point of view. Say how one can use this information.

FINDING THE LAW

As far as common law is judge-made it comes into force through the rulings of the courts. In the U.S.A. a judge hears a case and announces his decisions. He may also provide his or her opinion for one party’s prevailing over the other, but he is not obliged to provide an opinion. This is due to the fact that the courts have to speed up the procedure of decision-making. Thus, the judges of juvenile courts, traffic courts, small claims courts do not write opinions in cases. A number of courts do write opinions (federal courts of appeal, the U.S. Supreme Court, etc.).

Written opinions of judges are compiled in a set of books called reporters. Each court system has its own reporter. For example, the U.S. Supreme Court opinions are published in three different sets of reporters (United States Reports, the Supreme Court Reporter, Lawyers Edition). Different states’ appellate courts and federal courts publish their own reporters.

There are also regional reporters which report state appellate opinions for seven geographic regions: Pacific, North Western, South Western, North Eastern, Atlantic South, South Eastern, and Southern. A case is located in a reporter in the following way: 1) the names of parties in the lawsuit; 2) court deciding the case, 3) date the opinion was announced; 4) cite. E.g.: HYNES v. NEW YORK CENT. R.CO. Court of Appeals of New York, May 31, 1921 231 N.Y. 229,131 N.E. 898.

The numbers and letters that make up the case cite mean the following: the 231 stands for the volume number of the reporter, N.Y. stands for the New York

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READING

Reports, the 229 stands for the page number in the volume mentioned (231). Similarly the 131 refers to the volume number of the regional reporter, N.E. stands for North Eastern, the 898 refers to the page number of the volume (131). The case parts mentioned above are followed by 1) the last name of the judge who wrote the opinion; 2) the text of the opinion, which contains case facts, rules, the result. If a case was decided by a multi-justice court the text of the opinion is followed by the names of other Justices. E.g.: HOGAN, POUND and CRANE, JJ., concur. HISCOCK, C.J., and CHASE and McLAUGHLIN. JJ., dissent. The letter J. stands for “justice”. There may be reports of concurring or dissenting opinions after the court’s main opinion.

Judgements of the lower courts may be either affirmed or reversed by the appellate court. If the judgement is affirmed, it means that the appellate court agrees with the lower court’s decision. If it is reversed, it means that the appellate court disagrees with the lower court’s decision. The case result is written after the text of the opinion and the names of the judges of a multi-justice court. E.g.: Judgement reversed.

In Great Britain the law reports are contained in different publications: New Law Journal, Family Law, The Times, etc. Until 1870 all law reports were privately published by barristers by whose names the reports were identified. E.g.: CI.&Fin. stands for CLARK AND FINNELY’S REPORTS. At present, besides private reports (e.g.: All E.R. — All England Reports published by Butterworths), there are “official” reports published by the Incorporated Council for Law Reporting.

In the reports, cases are cited in the following way: R. v. Smith [1959] 2 All E.R. 193, where the name of the plaintiff (R. — Rex or Regina) comes first. The second name (Smith) is the name of the defendant. [1959] stands for the year of the report, 2 stands for the number of the volume of All England Reports, 193 is the number of the page. These parts of the case are followed by the text of the opinion. E.g.: R. v. CREED [1843] 1 C.&K. 63.

The collector of a water company gave to the prisoner, who was the turncock, authority to receive from three persons the amounts due from them for water rents. The next day the collector asked the prisoner if he had received the amounts, when he said that he had and would pay them over the next day, instead of which he absconded. Held, no embezzlement.

ERSKINE, J. — If the prisoner rendered a true account of the money he had received, it is no embezzlement; if he had received these sums, and had rendered an account in which the sums were omitted, it would be evidence to show that he had embezzled the amount.

Statute law in the U.S.A. is found in the codes. Codes are arranged according to subject matter called titles (commercial law, domestic law, etc.). Each title contains a number of sections which are subdivided into subsections. Most agency regulations are contained in the Code of Federal Regu-

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READING

7.General legal principles

8.Private legal transactions

English common law

6.International contracts

7.Custom

8.Equity

9.Royal prerogative

10.Canon law

11.Reason/natural law

12.Private legal transactions

American common law

7.International contracts

8.Private legal transactions

b) Answer the following questions.

1. What does the term the “sources of law” mean? 2. What are the sources of law in the civil/common law tradition? 3. What is the place of judicial decisions in the civil law tradition as compared to those in the common law tradition? 4. What approaches do judges in the civil law tradition use in interpreting legislation?

c) Make your own scheme covering the sources of Russian law. Keep in mind their priority.

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LESSON THREE

2.Read the title of the text and speak about legal problems it may deal with.

3.Read the text and:

a)say, whether it deals with the following aspects of the problem:

Codes of laws.

The role of statutes in common law. Codification of the law in Russia.

The USA Uniform Commercial Code. Napoleon’s Code.

b)point out paragraphs covering the following aspects.

Differences between the traditions of civil and common law. Characteristic features of codification of the law in the US and civil law

countries.

Private organizations of lawyers.

SOME DIFFERENCES BETWEEN

COMMON AND CIVIL LAW

The traditions of common and civil law hold much in common. Both are products of Western civilization and share its cultural and ethical heritage. However, important differences existed — and still exist, though to a lesser degree — between the two traditions. The difference respects the manner in which the authoritative starting points for legal reasoning are set out. In Civil Law, these are contained in legislation which, when general rules and norms of private law are in question, takes the form of a code. In Common Law, in earlier periods, starting points for legal reasoning were found in judicial decisions and, to a much lesser extent, in statutes. Today, statutes play a larger role than in the past, but judicial decisions remain of central importance.

A second difference concerns the style of legal analysis and thinking. Although various forces have today reduced the differences between the two traditions, civilian jurists still state legal propositions more abstractly and systematically than do jurists in the Common Law tradition. Moreover, civilians also generally place greater value than do Common Law jurists on coherence, structure, and high-level generalization. The latter proceed in a more factspecific fashion, typically reasoning from the interests and values at stake in concrete situations rather than from the accommodation of interests and values crystallized in generalized rules and principles. Overall, the Common Law accordingly tends to place less weight on administrability and predictability than does Civil Law.

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READING

In Civil Law systems, traditionally, the most important form taken by legislation in the area of private law is the code. In conception and style, codes are emanations of the legal science that developed over the centuries in continental European universities. Codes exhibit qualities of comprehensiveness, high-level generality, and internal coherence. In Common Law, on the other hand, statutes were seen as remedying a particular mischief; accordingly, they did not provide a basis for reasoning by analogy. Civil Law’s ideal of codification has, however, not been without attraction for American jurists. A movement for codification emerged in the Effect of the Human Rights Bill.

But it should be emphasized that the essence of codification in civil law countries and the USA is rather different. Civil Code’s provisions in the USA are to be regarded as merely declaratory of Common Law and equitable rules and doctrines except where a clear intent to depart from them is discernible. As many questions did not receive explicit answers in the Code, it could not constitute the primary source of the law of private rights.

Nevertheless, many states of the United States have today so-called codes; these are, for the most part, treated like statutes. Moreover, even in legislation such as the Uniform Commercial Code, one does not find the systematic structure and the relatively high degree of generalization and conceptualization typical of codes in Civil-Law systems. In contemporary American judicial thinking, only modest movement has occurred in the direction of viewing “codes” as fresh starts rather than mere compilations, systematizations, and declarations of judicially established propositions. There is, however, one route through which the style of thought and presentation embodied in Civil-Law codes has achieved some acceptance by American jurists. The American federal system, with its private-law diversity, has called forth what can be seen as a kind of unofficial codification, namely, the Restatements of the Law.

TEXT 4

1.Memorize the following words. persuasive — здесь побудительный

recur — повторяться; происходить вновь curtail — сокращать, урезать

voidable — оспоримый, могущий быть аннулированным

2.Read about the techniques of legal reasoning and legal argument. Say what the main features of these techniques are.

While you are reading try to formulate the definitions of the following terms:

a)ratio dicidendi; b) obiter dicta; c) at bar; d) binding precedent; e) non-binding precedent.

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LESSON THREE

LEGAL REASONING

AND LEGAL ARGUMENT

It gives away no secret to observe that lawyers have their own unique discipline and approach to the resolution of legal problems. Not surprisingly, there are laws about determining the law. One of the most important of these laws is the law of precedent or stare decisis. Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, because it is assumed that the more recent the case is, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority.

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

The lawyer will be appearing before a particular court and the first thing that the lawyer must do is to note the rank of that court in the hierarchy of courts. This is necessary for two reasons: first, because a higher ranking court is not bound to follow the decision of a lower court and second, because some courts do not apply the rule of stare decisis with respect to their own prior decisions.

Legal argument when there is a precedent

Thus noting the court ranking of the judge before whom the lawyer will be appearing and guided by the doctrine of stare decisis, the lawyer will then prepare his or her argument. Usually, the best position for the lawyer occurs when there is a precedent case supporting his or her client’s case. The lawyer will then argue that the court is either bound, or that the court, if not actually bound, ought to be persuaded by the precedent case to find in the client’s favour. In his or her research, the lawyer will therefore look for cases with results which support the client’s position and will prepare to argue that the ratio decidendi of those precedent cases covers the facts of the case at bar. However, just locating and evaluating the prospects of precedent cases is not easy since it is often difficult to determine and articulate the authority of a case. Moreover, skill is necessary to analyze and organize the material

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facts of both the precedent case and the case at bar. That said, more difficult problems of legal reasoning and legal argument occur when the lawyer is unable to find a close case or any case at all or, worse yet, when a case presents itself which appears to be unfavourable. How does the lawyer deal with these problems?

To get around an apparently unfavourable case, there are a number of tools and techniques available to the lawyer. The lawyer may not simply ignore the unfavourable case and hope that the other side does not discover the authority. This is unethical and with respect it may be submitted that it is also unethical and intellectually dishonest for a judge in deciding a case to simply ignore a precedent case which stands in the way of the decision that the judge wants to make. This is not to say that lawyers and judges must deal with every case that remotely touches on a subject but only that there should be an honest effort to play by the rules.

The techniques that are available follow as a consequence of accepting and then manipulating the doctrine of stare decisis. The techniques structure and direct the lawyer’s legal reasoning and argument. The following are generally recognized:

•The lawyer can argue that the precedent case does not stand for the legal proposition for which it has been cited. In other words, the lawyer articulates the ratio decidendi of the case differently.

•The lawyer can argue that while the precedent case does articulate the legal proposition for which it has been cited, nevertheless the proposition was obiter dicta (things said by the way). Subject to an exception for considered pronouncements of the law by appellate courts, comments by the judge which are not part of the ratio decidendi are obiter dicta and are theoretically not binding in a subsequent case.

•The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case has been effectively overruled by a decision of a high court or by the introduction of a new statute.

•The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case at bar is different; that is, the cases are factually distinguishable. Glanville Williams suggests that there are two kinds of "distinguishing": restrictive and non-restrictive:

Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi of the earlier case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court regarded as immaterial.

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LESSON THREE

Where the case being relied upon has a built in public policy factor, the lawyer who wishes to distinguish the case may argue that public policy has changed and while the legal principle of the precedent case is still good law, it is distinguishable because of the change of circumstances. The possibility of this type of argument was noted in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co., an important case with respect to the principle that contracts in restraint of trade may be voidable on grounds of public policy.

• The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, there is another precedent of equal weight which stands for the opposite proposition. The lawyer then goes on to argue that it is that other case which the court should follow. Where there are conflicting decisions of equal weight the court should follow the more recent decision or the lower court judge may follow the decision which commends itself most to him.

Legal argument when there is no precedent

Where a lawyer cannot find a binding precedent, he or she may rely on a non-binding precedent from another jurisdiction. While not obliged to do so, the court may be impressed with or be persuaded by the reasoning and be prepared to adopt the rule established by the foreign case. However, care must be taken in employing this technique because it often necessitates reviewing the foreign law to determine whether there may be underlying differences in principles which qualify or which may diminish the persuasiveness of the foreign case. For example, decisions on the American Bill of Rights will obviously be important and helpful in interpreting Canadian Charter of Rights and Freedoms.

Where a lawyer cannot find a binding precedent, he or she may form a legal argument from first principles. This approach identifies legal principles from decided cases and argues that while the factual circumstances of the cases may appear different, analytically they are the same. This kind of legal argument is often used with respect to determining the measure of damages. For example, without any reference to its particular facts, Wertheim v. Chicoutimi Pulp Co. is often cited as authority for the legal principle that where there is a breach of contract then as far as money can do so, the injured party is to be placed in as good a position as if the contract had been performed. The general principle is then applied to the particular facts of the immediate case. Where a lawyer cannot find a precedent, he or she can go beyond first principles and instead develop an argument that the decided cases have evolved to a general principle which covers the immediate case1.

Notes: 1 Perell P. Stare decisis and techniques of legal reasoning and legal argument. 1987.

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ORAL SPEECH PRACTICE

ORAL SPEECH PRACTICE

I.Mind Your Grammar When You Speak

1.Agree with the statements.

Model. A: Common law principles are sometimes regarded as a kind of law of nature — a natural law.

B:It is known that common law principles are sometimes regarded as a kind of law of nature — a natural law.

Prompts: 1. The American judge comes to office typically after a successful career in legal practice. 2. The title “Judge” is considered a title of special honour. 3. In the U.S.A. the judiciary is not a civil service but an independent branch of government. 4. Political conflicts often cannot be settled by legislation. 5. The natural-rights theory postulates the existence of fixed norms and concepts by which legal rules are judged.

2. Doubt the following statements:

Model. A: The sitting of the committee will begin at 5 o’clock.

B: I’m not sure that the sitting of the committee will begin at 5 o’clock. Prompts: 1. The basic concepts of his report will be discussed tomorrow. 2.

The court will arrive at a decision today. 3. Various kinds of individual and group interests will be balanced at the negotiations. 4. Legal concepts and rules can be viewed in isolation from their social contexts. 5. It is necessary to focus on this problem today.

3. Say you are not interested in the facts your colleague is going to tell you about.

Model. A: I thought you might like to know the reason of his coming. B: Why he came here doesn’t interest me very much.

Prompts: 1. I thought you might like to know what he said at the negotiations. 2. I thought you might like to know how he viewed the problem. 3. I thought you might like to know what effect he produced on the audience. 4. I thought you might like to know what he thought about it. 5. I thought you might like to know why I had been speaking to him for half an hour.

4. Make sure you and your colleague are speaking about one and the same person (thing).

Model 1. A: Do you know that man?

B: Do you mean the man who is speaking to Mr. Parker?

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